05.15.07

Gemini version available ♊︎

Software is not a Component

Posted in GNU/Linux, Humour, Intellectual Monopoly, Law, Microsoft, Patents at 11:09 am by Shane Coyle

Now, I have already stated that I don’t believe that software, in and of itself, is patentable. As U.S. Supreme Court Justice Antonin Scalia recently remarked, "There needs to be a device", and Microsoft’s own attorneys agreed.

MR. OLSON [For Microsoft]: The ’580 patent is a program, as I understand it, that’s married to a computer, has to be married to a computer in order to be patented.
JUSTICE SCALIA: You can’t patent, you know, on-off, on-off code in the abstract, can you?
MR. OLSON: That’s correct, Justice Scalia.
JUSTICE SCALIA: There needs to be a device.
MR. OLSON: An idea or a principle, two plus two equals four can’t be patented. It has to be put together with a machine and made into a usable device.

Much of the AT&T case hinged upon whether software can considered to be a "component" of a patented invention, as was argued against by Microsoft’s attorney:

MR. OLSON: Physical things must be components under 271(f) because they must be supplied from somewhere. Ideas have no physical from. They’re in the air. The words used, “supplied from” tells us that it must be a physical thing combined with. Ideas don’t combine with physical things to make a patented invention. Physical things do.

Apparently, Justice Alito went even further with his concurring opinion [pdf].

I agree with the Court that a component of a machine, whether a shrimp deveiner or a personal computer, must be something physical. Ante, at 9 11. This is because the word "component," when concerning a physical device, is most naturally read to mean a physical part of the device.

Furthermore, §271(f) requires that the component be "combined" with other components to form the infringing device, meaning that the component must remain a part of any.

For these reasons, I agree with the Court that a set of instructions on how to build an infringing device, or even a template of the device, does not qualify as a component. Ante, at 9 10.

Because no physical object originating in the United States was combined with these computers, there was no violation of §271(f). Accordingly, it is irrelevant that the Windows software was not copied onto the foreign-made computers directly from the master disk or from an electronic
transmission that originated in the United States. To be sure, if these computers could not run Windows without inserting and keeping a CD-ROM in the appropriate drive, then the CD-ROMs might be components of the computer. But that is not the case here.
* * *
Because the physical incarnation of code on the Windows CD-ROM supplied from the United States is not a "component" of an infringing device under §271(f), it logically follows that a copy of such a CD-ROM also is not a component. For this reason, I join the Court’s opinion, except for footnote 14.

My favorite part is this "To be sure, if these computers could not run Windows without inserting and keeping a CD-ROM in the appropriate drive, then the CD-ROMs might be components of the computer.".

I actually have to run down to the USPTO right now, since it appears that Live CDs may be patentable… there isn’t any prior art, is there?

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Links 29/09/2022: Avidemux 2.8.1 and Pithos 1.6.0

    Links for the day



  2. EPO Management Plans to Further Accelerate Grants of Illegal, Invalid, Fake European Patents Next Year

    The EPO has quit behaving like a patent office; it’s just issuing a lot of bogus patents to meet pre-defined “targets” and then it bullies examiners into blind compliance



  3. [Meme] EPO Would Probably Argue It's Just a Coincidence That “Women Have Received, on Average, Only 0.88 Steps to Every 1 Step Awarded to Men”

    Women barely get promotions at the EPO (“men are 54% more likely to receive a double step compared to women”); the EPO keeps storytelling to distract from these measurable facts



  4. Facts About the European Patent Office and Why Recruiting/Retaining Capable Examiners Isn't Possible Anymore

    A couple of new papers (or parts of a long paper) reveal an office responsible for granting patents which intentionally fails to do the job properly



  5. No Protection for Linux Offered by the So-called 'Linux' Foundation

    From a purely objective perspective, the so-called 'Linux' Foundation spends far more time/money protecting monopolies than it spends protecting Linux; hence, the organisation arguably does more harm than good to society



  6. Software Freedom Conservancy (SFC) is Facilitating a Hostile Takeover by Corporations (Privatising Free Software)

    The Software Freedom Conservancy (SFC), which is trying to take ‘business’ and funds away from the FSF (also from SFLC, which sued it over that), helps IBM/Red Hat and the corporate front groups take over important GNU projects, typically under the guise of providing security and funds (financial security)



  7. The Linux Foundation is in No Position to Lecture Us (or Anybody) on Diversity

    The Linux Foundation cannot define and cannot understand how to support women and instead it trolls people; it also hires no black people and just like IBM it then accuses the community of being an impediment to diversity (community projects actually have more such diversity)



  8. Links 29/09/2022: Linuxfx 11.2 and Progress on GNOME 43

    Links for the day



  9. IRC Proceedings: Wednesday, September 28, 2022

    IRC logs for Wednesday, September 28, 2022



  10. Links 28/09/2022: Red Hat Enterprise Linux 8.7 and 9.1 Beta; SpiralLinux 11.220925

    Links for the day



  11. Microsoft is Coasting on What it Once Was, Using Things like Internet Explorer for Leverage and BSA Ads on Facebook

    Reprinted with permission from Ryan



  12. IBM is Outsourcing Key Parts of GNU to Microsoft Linux Foundation

    GNU Toolchain is being given to Microsofters at the Linux Foundation after just over 3 years of coup against the FSF



  13. MICROSOFT Still the ENEMY of Linux and FOSS, But Somebody Has Very Selective Memory and Weak Critical Skills

    The latest video of "Nick" misleads on what Microsoft means to GNU/Linux users and Free software developers; I respond to some weak or false premises



  14. Get Away From Clowns (Clown Computing), They Will Only Betray and Hurt You at the End

    Corporations do not like people, they are just blindly obedient to shareholders and their personal interests; outsourcing your personal data (or business data, which impacts non-consenting subjects) to other companies is a self-harming if not outright suicidal move and we gather more and more evidence of this over time



  15. The Internet is Under Growing Threat of Being Cut Off (at Least Partially)

    War and conflict being escalated means that cables which connect continents are at threat of being severed without anyone being detected as accountable for it (this is incredibly difficult when dealing with cables that long), knowing how disruptive such an action would be as we've come to assume that the Internet is just "always there"



  16. Free Speech is Becoming as Scarce as Independent Journalism (Even at the FSF)

    Censorious tendencies and authoritarian leanings have put speech (both online and offline) at risk; it has gotten so bad that nowadays it's difficult to say what's true and factual if someone's feelings (or a clique) will be hurt



  17. Attempts to Legislate Against Free Software in Order to Elbow Such Software Aside

    There's not only a wave of attacks falsely attributing security issues to Free software (the media says "Open Source") but also new legislation in the United States, likely crafted by lobbyists, which discriminates against Free software whilst ignoring the elephant in the room, e.g. government back doors



  18. Links 28/09/2022: Fedora 37 Changes, Ubuntu Desktop Advertised as 'Clown' (Controlled by GAFAM)

    Links for the day



  19. IRC Proceedings: Tuesday, September 27, 2022

    IRC logs for Tuesday, September 27, 2022



  20. 'The Linux Experiment' Thinks RMS is the Enemy and Microsoft is Not

    Microsoft apologists ignore the profound evidence of Microsoft's attacks on GNU/Linux



  21. Linux Today Back to Posting Spam Instead of News

    An early news aggregator for Linux (since the 1990s) is looking for a quick buck; There’s probably more of this to come (some advertising contract with ZDNet‘s parent company)



  22. Links 27/09/2022: Bash 5.2 and LXD 5.6

    Links for the day



  23. Balanced Coverage in Phoronix Today

    Phoronix does a lot of promotional ads today while raising corporate money



  24. Links 27/09/2022: CRUX 3.7 Released and Project Caviar

    Links for the day



  25. IRC Proceedings: Monday, September 26, 2022

    IRC logs for Friday, September 26, 2022



  26. Links 26/09/2022: FocusWriter 1.8.3 and Istio 1.15.1

    Links for the day



  27. Media Censorship is Spreading and Infesting the World Wide Web

    Media and social control media are manipulating what people are reading and writing; this is done in the name of protecting us from misinformation, but oftentimes it's done to actually hide verifiable information (in order to protect a government's self-serving disinformation campaign)



  28. [Meme] Buy GitHub, Buy Systemd, Buy Canonical, Bye-Bye GNU/Linux

    Windows is losing ground fast; taking over the competitor/s is an antitrust violation, but who is left to file a complaint when bribery becomes so routine?



  29. GNU is Turning 39 Years Old in a Matter of Hours (and You're Very Likely Using It All the Time But Simply Unaware of That, Referring to It by the 'Wrong' Name)

    GNU is the project that gave us GCC (Free/libre compiler) and the GPL, among many other things; it's important to recognise the significance of its genesis 39 years ago in Massachusetts



  30. IRC Gateway Issues and Separating the Main Techrights IRC Channel From Non-Tech-Related Politics

    We're branching off to an old IRC channel (abandoned for many months already) and one of the Web gateways seems to be down at the moment (for all networks we've tested with), so please be patient


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts